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National Waste Managers, Inc. v. Forks of Patuxent Improvement Association, Inc.

Court of Appeals of Maryland

June 21, 2017


          Argued: May 8, 2017

         Circuit Court for Anne Arundel County Case No. 02-C-14-184528

          Barbera, C.J. Adkins McDonald Watts Hotten Getty Wilner, Alan M. (Senior Judge, Specially Assigned) JJ.


          Wilner, J.


         The origin of this saga goes back to 1990, when petitioner (whom we shall refer to as National) sought zoning approval to construct and operate a rubble landfill on a 482-acre parcel and to conduct a sand and gravel operation on 108 acres of that same parcel. The parcel is located in an RA (Rural-Agricultural) zone in the Odenton area of Anne Arundel County. Those operations are permitted by special exception in an RA zone. See Anne Arundel County Code, §18-4-106 (hereafter AA Code).

         What has driven this case for the last 27 years is the confluence of (1) administrative and judicial litigation during a substantial part of that period, (2) a time-consuming process for obtaining State and county permits required in order to construct and operate the proposed facilities, (3) time limits under county zoning laws on obtaining those permits, and (4) extension and tolling provisions under county law.

         We begin with 1990, when a county Administrative Hearing Officer (AHO) denied National's request for special exceptions and an appeal was taken to the Anne Arundel County Board of Appeals. On December 23, 1993, after an on-site inspection and sixteen hearings spread over a three-year period, the Board of Appeals granted the special exceptions, along with two setback variances permitting the landfill to extend 760 feet closer to a residential area and 100 feet closer to a property line than otherwise was allowed. Evidence in support of the request, credited by the Board, showed that the property had been mined during the preceding 40 years and was likened to a moonscape, full of debris, containing ravines that were 30 to 45 feet deep, and subject to erosion. Illegal dumping, target shooting, and hunting regularly occurred on the property.

         After commenting on the evidence, the Board concluded that, with the conditions it intended to impose, National was capable of meeting all of the performance standards required by law and had met its burden of showing the necessity for the two requested variances. The Board found, specifically, that the proposed operations "will be no more objectionable with regard to noise, fumes, vibration, or light to nearby properties than operations in permitted uses." 1993 Memorandum of Opinion, at 30. With respect to the setback variances, the Board noted that, due to the previous mining operation, the land was cratered up to the property line and that the purpose of the variances was to permit petitioners to fill in those areas "so that the dangerous and eroding conditions no longer exist." Id. at 31-32. The Board's Order limited the life of the landfill operation to 12 years, from the beginning of waste collection to the final waste acceptance.

         The impact of several statutes becomes relevant at this point, although they will be discussed again later. The Anne Arundel County zoning law is contained in Article 18 of the AA Code. Section 18-16-304 sets forth criteria for granting special exceptions, and §18-16-305 sets forth requirements and standards for granting variances. General standards for approving variances are contained also in §3-1-207, which is part of the AA Code dealing with the Board of Appeals. Subsections (a)(2) and (e) of that section are particularly relevant. Subsection (a)(2) provides:

"The Board of Appeals may vary or modify the provisions of Article 18 of this Code when it is alleged that practical difficulties or unnecessary hardships prevent carrying out the strict letter of that article, provided the spirit of the law shall be observed, public safety secured, and substantial justice done. A variance may be granted only upon an affirmative finding that . . . (2) because of exceptional circumstances other than financial considerations, the grant of a variance is necessary to avoid practical difficulties or unnecessary hardship, and to enable the applicant to develop the lot."

         Subsection (e), as it pertains to this case, precludes the granting of a variance unless the Board finds:

"(1) the variance is the minimum variance necessary to afford relief;
(2) the granting of the variance will not:
(i) alter the essential character of the neighborhood or district in which the lot is located;
(ii) substantially impair the appropriate use or development of adjacent property; [or]
* * * *
(v) be detrimental to the public welfare."[1]

         AA Code, § 18-16-405(a) adds, in relevant part, that "[a] variance or special exception that is not extended or tolled expires by operation of law unless the applicant within 18 months of the granting of the variance or special exception (1) obtains a building permit or (2) files an application for subdivision." Subsection (b) of that statute permits an applicant to file an application for a variance to extend that time, and subsection (c) provides that "[t]he pendency of litigation may toll the time periods set forth in subsection (a) to the extent provided by law." Section 18-16-405 thus speaks of, or refers to, two kinds of variances - a subsection (a) variance, which is substantive in nature, allowing something to be done that otherwise is impermissible, such as the variances granted to National from the setback requirements, and a temporal variance referred to in subsection (b), which merely extends a time requirement for obtaining necessary permits.

         Bearing on that county ordinance is Md. Code, Environment Article, §9-204(d), which requires a refuse disposal permit issued by the Maryland Department of the Environment (MDE) before a person may install a landfill, or any other refuse disposal system. As we shall explain, obtaining such a permit can be a lengthy process that can take years to complete.

         The Board's decision touched off a determined effort, mostly by the county, to overturn it and scuttle any prospect of the landfill or sand and gravel operation ever opening. Much of that effort was described by the Court of Special Appeals in National Waste v. Anne Arundel, 135 Md.App. 585 (2000), which we need not repeat. Suffice it to say that (1) the Board's decision was ultimately affirmed by this Court in Halle v. Crofton Civic, 339 Md. 131 (1995), (2) declaratory judgments and injunctions were issued against the county to halt its obfuscating tactics, and (3) twice the county was held in contempt for violating orders of the Circuit Court. That aspect of the litigation came to an end when the Court of Special Appeals rejected the county's arguments in National Waste, supra and remanded the case to address other issues, and this Court denied the county's petition for certiorari. See Anne Arundel County v. National Waste, 363 Md. 659 (2001).

         The Board found that the time requirements under §18-16-405(a) were tolled due to the litigation and did not begin to run until April 13, 2001 - nearly eight years after the Board had granted the special exceptions and setback variances - when this Court denied certiorari, and that the two-year time limit would extend to that day in 2003.

         In January 2003, National applied for a two-year extension which, after a hearing, the Board granted on April 14, 2004. In its Memorandum of Opinion, the Board recounted testimony from the Administrator of MDE's Solid Waste Program regarding the approval process for a waste disposal permit, noting that new requirements had been established since 1993, including the requirement of liners and new hydrogeological studies. The Board recognized that there were protestants who expressed concerns regarding traffic, air pollution, and land use issues - matters that had been considered when the Board had approved the special exceptions - and that there were six times more homes in the community than there were in 1990.

         After considering all of the evidence, the Board found that, as a result of the delay occasioned by the litigation, National had "to begin the process nearly over again" and that it would take a minimum of three years to complete that process. 2004 Memorandum of Opinion, at 7. It added that there was no way National could obtain the necessary approvals in time to comply with the zoning regulations, and that "the interaction of the overlapping regulations has resulted in the exceptional circumstance to be suffered by [National]." Id. The Board expressly rejected the protestants' complaints (1) that National failed to show due diligence in pursuing the MDE permit, and (2) of an adverse impact of the project on the neighborhood.

         With respect to the first complaint, the Board found that "the applicants have diligently pursued the reactivation of the permit application for the rubble landfill with the State of Maryland" and that any delays in the process "have been caused by difficulties in obtaining governmental commentary on the application." Id. at 8. It noted in that regard a 14-month delay in the State's response to a submission by National. As to the impact on the neighborhood, the Board explained that the focus "is not on the special exceptions and variance that were approved" but only "on variances to permit a two-year extension." Id, at 9. It added:

"If there are many more homes in the community now, those homes have been constructed with full knowledge of the approved special exceptions for a sand and gravel/rubble landfill. There is nothing inherently improper regarding the location of a sand and gravel/rubble landfill near residences. In fact, the County Code expressly permits such ...

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